Law and academy clash in the long shadow of the gun

A legal battle over IRA interview tapes held by a US college is nearing its climax. Jon Marcus reports

A transatlantic legal case centring on research into the Troubles at a US university has dredged up the legacy of sectarian violence in Northern Ireland and the notorious unsolved murder of a mother of 10 – and raised the prospect of political vendettas against the researchers and their interviewees.

The case is heading to its climax, with only one clear outcome so far: it will have an enduring effect on historical research. But it has also prompted calls for academic research to be given greater protection under US law.

US officials, under an international legal-assistance treaty, have so far succeeded in their attempts to subpoena a series of oral histories called the Belfast Project, stored at Boston College. The project consists of recorded interviews with Northern Irish Republicans and Loyalists made by scholars and journalists under a promise of confidentiality.

The tapes are being sought by authorities in Northern Ireland to shed light on the murder of Jean McConville, a 40-year-old mother of 10 from Belfast who was abducted and killed by the Provisional IRA in 1972.

While Boston College fought for seven months to quash the subpoenas, a US federal judge largely ruled against the university. It has now left the researchers themselves to pursue a last-ditch appeal that will be heard in March.

The tapes, in the meantime, have been handed over to the US Department of Justice.

Boston College officials have warned the university’s students in the UK to avoid political discussions about Northern Ireland in public and forgo wearing Boston College-branded clothing in “sensitive areas” such as Belfast.

“This case is a complex legal issue further complicated by the politics and history of Northern Ireland, and it is best to simply decline to discuss it,” officials write in a letter to the students.

On the court case, university officials said their legal options had been exhausted, although they had won a victory for academic freedom by at least persuading the judge that oral histories collected by scholars should be treated with the same sort of special privilege accorded to journalists’ notes and photographs.

Important precedent

Jack Dunn, a Boston College spokesman, said the case had “established an important precedent for oral history by recognising through our arguments that oral history was a legitimate interest that deserved special consideration in the eyes of the court. But that does not trump a criminal investigation in a country with which the US has a treaty obligation.”

Reasonable parties, he added, “would agree that Boston College did all that it could in this case”.

That view is strongly challenged by critics, including the Belfast Project researchers themselves, who have angrily split with the university.

“If this is the mettle of American academia, then I despair for it,” said Ed Moloney, an Irish journalist who was director of the Belfast Project and is appealing the most recent rulings in the case. “It’s absolutely disastrous. It will affect every American academic who wants to embark on any oral-history project that is considered controversial.”

The Belfast Project was Mr Moloney’s idea, and Boston College – which has extensive holdings of Irish literature, original manuscripts and other documents – agreed to house it.

Participants were told that the tapes would not be released until after their deaths, though affidavits submitted in the legal case show that the university warned Mr Moloney that it could not guarantee this in the case of a court order.

Mr Moloney and Anthony McIntyre, a former IRA member, conducted interviews with 26 former members of the IRA, while researcher Wilson McArthur interviewed 24 former members of the Loyalist Ulster Volunteer Force and the Ulster Defence Association.

Few people seemed to know the archive existed until one of those interviewed, former IRA bomber Dolours Price, told The Irish News in 2010 that she had been involved in the abduction and murder of Ms McConville, who was shot in the head and buried on a beach in County Louth. The IRA believed Ms McConville was an informant.

Ms Price claimed in the newspaper that the killing was carried out on the orders of Gerry Adams. Mr Adams was reputed to be a senior figure in the IRA at the time of the murder – an accusation he has denied – and is now the leader of Sinn Fein, the second-largest party in the Northern Ireland Assembly.

Mr Adams has also denied any involvement in Ms McConville’s death and has said he has “nothing to fear” from the Boston College interviews.

Mr Moloney wrote a book in 2010 called Voices from the Grave: Two Men’s War in Ireland, using Belfast Project interviews with Brendan Hughes, a former IRA commanding officer who had by then died. Mr Hughes also alleged that Mr Adams was in control of a unit responsible for making people such as Ms McConville “disappear”.

In May, the US government issued a subpoena for the Belfast Project tapes of Ms Price and Mr Hughes on behalf of an unspecified British agency, assumed to be the Police Service of Northern Ireland.

Another subpoena followed in August demanding any interviews relating to the McConville murder.

“Quite frankly, I think all of us were surprised by the subpoena in light of the general feeling of goodwill that resulted from the Good Friday Agreement,” said Mr Dunn. “There was a prevailing sense that everyone on both sides of the Troubles wanted to put this behind them.”

Outraged

Boston College moved to quash the subpoenas – although Mr Moloney said it did so “reluctantly”, and only after he had tipped off The New York Times. US District Court Judge William Young upheld the first subpoena in December, and in January ordered Boston College to hand over transcripts of interviews with seven additional participants. While the university criticised these rulings, it did not appeal them.

The outraged Mr McIntyre and Mr Moloney took up the fight from there. They argued that Mr McIntyre and his family in the Republic of Ireland would be endangered if the tapes were handed over to the Northern Ireland authorities and that Mr Moloney’s rights as an American citizen to freedom of speech and of the press were being violated.

They lost when Judge Young decided that the legal-assistance treaty required the material to be surrendered anyway, but the researchers immediately appealed to a higher court, and there the case now hangs.

“Boston College are cowards,” Mr McIntyre’s wife, Carrie Twomey, shouted after Judge Young announced his ruling. In a later radio interview, she said that her husband is now being characterised as an informant himself.

“And the penalty for informing is death … We are very clearly in danger. It’s a very frightening time.”

Ms McConville’s children have also become involved in the dispute, calling for their mother’s murder to be solved.

Diplomatic issues

US journalists have a long-established privilege that protects them from having to hand over notes and photographs or the identities of confidential informants to police unless a judge can be convinced that the information is “directly relevant” to a criminal investigation, that it is not “readily available from a less sensitive source”, and that the inquiry is “non-frivolous”.

In an important nuance, Judge Young applied the same standard to the oral histories. Then, having applied it, he decided that the government’s subpoenas overcame these hurdles.

The case has raised diplomatic issues. John Kerry, chairman of the Senate Foreign Relations Committee, has asked Hillary Clinton, the secretary of state, to refuse the Northern Irish demand for the tapes, citing, among other things, the confidentiality of academic research.

Critics say they wish the university had done this. “The academic-freedom argument would have best been carried by Boston College. But Boston College folded like a cheap suit,” said Harvey Silverglate, co-founder and chairman of the Foundation for Individual Rights in Education and an attorney who has taught at Harvard Law School.

“It was a shocking dereliction of duty that it didn’t defend, full bore, the academic-freedom interest here.”

He added: “A free society can’t last for very long if these independent segments of civil society are not allowed to function without being government servants in the process.”

Privileges such as those enjoyed by journalists “should absolutely be extended to academia, and the reason they have not been extended to academia is because academics haven’t demanded it be so”, Mr Moloney said.

“Unfortunately, what we have here is an example that has been set by Boston College, which put up a pro forma defence.”

But Mr Dunn responded that the university had “pursued this case as aggressively as possible, with the realisation of the chilling effect it could have on academic research and the enterprise of oral history”.

“Where we differ is that we recognise that the United States government has a compelling interest in assisting an allied country with [which] it has a treaty on criminal investigations by providing information relevant to a heinous crime.”

“These interests”, he added, “are in competition.”

Readers’ comments

Harvey A. Silverglate16 February, 2012
Congratulations to Jon Marcus and Times Higher Education for having covered this important legal proceeding with more vigor and discernment than the American press has done. My fellow Americans by and large seem not to appreciate the long-term implications of this very ill-considered, trouble-making demand for what should be privileged scholarly materials.

Ed Moloney16 February, 2012
I’d like to echo Harvey Silvergate’s comment that Jon Marcus has done a better job covering the Boston College saga than most in the American media. He is also right in pointing out that the full ramifications and danger of what has happened seems not yet to have percolated through to American academe. Hopefully Mr Marcus’ piece might start to change that.

The story of the Boston College subpoenas is a long and complicated one and it is understandable that Jon Marcus’s account is, in some key areas, less than complete.

For instance he writes: “Participants were told that the tapes would not be released until after their deaths, though affidavits submitted in the legal case show that the university warned Mr Moloney that it could not guarantee this in the case of a court order.”

That was a quote from a fax sent to me by Burns librarian Bob O’Neill in May 2000, our very first contact about the oral history project. What is missing from the account is what O’Neill went on to say: “Nevertheless the First Amendment to our Constitution is greatly cherished here, and I suspect the courts would look upon these interviews as privileged information. But I am not an attorney.”

This fax, which has now assumed a significance beyond its merit, was in fact an opening shot in a negotiation and two months later myself and Anthony McIntyre met O’Neill in Belfast to discuss this and other aspects of the project further. At that meeting we sought and secured from O’Neill an assurance that no interviews would be lodged at Boston College if there was any legal risk attached to them and he, O’Neill, returned to Boston to investigate further.

At a later stage when the Loyalist group, the Ulster Volunteer Force agreed to participate in the project their representatives had two meetings in Belfast with Boston College which were dominated by the question of legal security. They specifically raised the possibility of the newly created Police Service of Northern Ireland getting their hands on the interviews and were assured that this could not happen. Otherwise they would not have participated.

My confidence, and that of both the IRA and UVF researcher, in Boston College’s assurance was buttressed by the contracts that were the product of O’Neill’s consultation with the college’s legal counsel subsequent to our Belfast meeting in 2000.

As any oral historian can tell you, the key document in such a project is the contract given to the interviewee to sign. This must specify any risks that exist so that the interviewee knows what he or she is getting into. It is called informed consent. If a risk of subpoena exists this is the place where it should be clearly identified.

But what did the contract drawn up by Boston College tell the interviewees? It gave them “ultimate power” over disclosure until their death. Any reasonable reading of that would have to conclude that the interviews were therefore secure from legal risk. Any effort by Boston College now to say that this risk was implicitly evident in other contracts with myself or the researchers – and the language employed in these other documents was ambiguous to say the least – has to be outweighed by the evidence that the college seemingly went out of its way to mislead the only people who mattered, the interviewees, and to hide this important legal caveat from them – and also from us.

The next question is why did they do this? One answer that leaps to mind is the knowledge that if Boston College had been candid with the interviewees the research project would have been stillborn. No interviewee would have dared participate and myself and the researchers would have walked away. Had it been honest and clear in its dealings with the interviewees Boston College would have lost the opportunity to collect a unique and historically valuable archive.

Throughout the sorry affair Boston College has suffered from a bad case of what I like to call ‘Abu Ghraib syndrome’. Like Bush, Cheney, Rumsfeld and the generals who devised and implemented the torture policy in Iraq, they have pushed responsibility for their misdeeds on to other, less powerful figures. In Iraq it was was privates and lower ranks who went to jail; in this affair Boston College is shifting blame on to its research workers. How shameful is that?

In Jon Marcus’s piece we have another example of this in a comment which has the distinctive fingerprints on it of BC spokesperson Jack Dunn: “The Belfast Project was Mr Moloney’s idea, and Boston College – which has extensive holdings of Irish literature, original manuscripts and other documents – agreed to house it.”

In other words Boston College was gracious enough to provide shelf space for a project which otherwise had everything to do with me and very little to do with BC. Unfortunately for Mr Dunn, the facts belie this unworthy attempt to distance Boston College from the oral history archive.

Boston College spent, by their account, between $250,000 and $300,000 on this undertaking, which became known as the Belfast project. So eager was Boston College for publications arising from the archive that we were pressed at one point to persuade the interviewees to allow their interviews to become public while they were still alive. We refused but when a book, Voices From The Grave, was published two BC academics, Prof. Tom Hachey and Dr O”Neill were its general editors.

They also wrote a foreword to the book which, inter alia, had this to say: “This unique paramilitary archive finds a proper place among the Burns Library’s rich and diverse holdings of Irish books, collections of private papers, poetry, paintings and digitised music related directly to Northern Ireland.” But now that the archive has become the subject of subpoenas, it is immediately disowned. How shameful is that?

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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